JOHNSON v. THE STATE OF NEW YORK, #2008-030-025, Claim No. 110711

Synopsis

While State not liable for bullying behavior of civilian cook who extorted
“little debbie” cakes from inmate claimant at his work assignment in
correctional facility kitchen, State is liable for the assaultive conduct of its
agents at correctional facility. No permanency of injuries established through
medical records or expert testimony. $5,000.00 damages for placing claimant in
imminent fear of harm and for intentional, offensive, touching.

Case Information

UID:

2008-030-025

Claimant(s):

JOHNNY JOHNSON

Claimant short
name:

JOHNSON

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

110711

Motion number(s):

Cross-motion
number(s):

Judge:

THOMAS SCUCCIMARRA

Claimant’s
attorney:

JOHNNY JOHNSON, PRO SE

Defendant’s
attorney:

HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL

BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL

Third-party
defendant’s attorney:

Signature date:

November 25, 2008

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Johnny Johnson, a former inmate proceeding pro se, alleges in his claim that
while he was in the custody of correctional facilities operated by the New York
State Department of Correctional Services [DOCS], personnel there first
negligently allowed his brutalization and extortion at the hands of the head
cook - a civilian State employee - and thereafter engaged in a course of
intimidation and harassment, in retaliation for claimant’s accusations
concerning such cook, all causing him injury. More specifically, he alleges
that on or about March 31, 2003 he was assigned to the kitchen at Mid-Orange
Correctional Facility [Mid-Orange], when Ronald Jefferson, the head cook in the
kitchen, began the use of threats and beatings to force claimant to purchase
commissary items with his own money for the use of the cook. The threats of
exposure to the prison population concerning the offense for which claimant was
incarcerated, and physical assaults, continued for a period of nearly five
months, he alleges.

On August 28, 2003 Mr. Johnson was transferred to Mt. McGregor Correctional
Facility [Mt. McGregor], where a pattern of harassment by correction officers
continued he alleges, because of claimant’s cooperation with the Inspector
General’s Office during their investigation of Jefferson at Mid-Orange.
One specific allegation in the written claim concerning such transfer
recites:

“. . . The officers who transported me told the officers at Mt. McGregor
what occurred, and the new officers began threatening and harassing me for the
months of September and October, including writing a false misbehavior report;
handcuffing me and placing me in a room with my face into the corner while they
banged on the walls with sticks, over my head . . .” [Claim No. 110711,
¶ 7].

In October 2003, claimant alleges he was transferred to Hudson Correctional
Facility [Hudson], at the behest of the Inspector General’s Office, and
although he was threatened by civilian personnel there as well, including
another civilian cook, he was also assisted by correctional personnel who
credited his claims of harassment and investigated.

Mr. Johnson alleges that in December 2003, he testified during an arbitration
hearing held by DOCS concerning Jefferson. Jefferson was dismissed thereafter.

A unified trial was held concerning this claim on October 15, 2008.

Mr. Johnson testified essentially as alleged in his claim. He indicated that he
was serving time at Mid-Orange on a conviction for the rape of a minor. He said
that generally, those who were convicted of such a crime, liked to “keep a
low profile.”[1] He said “they just
want to do their time, make a correction and leave.”

When he began his work assignment in the kitchen the head cook, Ronald
Jefferson, kept pressing him to reveal why he was incarcerated. Since claimant
did not think such information was any of Mr. Jefferson’s business, he
refused to answer. Mr. Jefferson at some unspecified point came down to the
kitchen area, called Mr. Johnson aside and directed him to the “vegetable
room”, closed the door, and then “viciously punched” claimant
in the ribs, while not saying anything. This occurred “several times over
a period of days,” where Mr. Jefferson would hit claimant “in the
ribs, the stomach, the back and sometimes the arm, for no apparent
reason.” Mr. Johnson did not report these incidents.

Mr. Jefferson learned from another source - an Officer Kannon - what
claimant’s crime was. He approached claimant, and said “I know what
you’re in here for. I like ‘Little Debbie’ cakes, so bring me
some.” Mr. Jefferson’s demands for cakes would occur in front of
other inmates, Johnson said, but the punching and threats of exposure concerning
his crime to other inmates were unwitnessed, as they occurred in secreted places
in the large kitchen.

In late June 2003 Mr. Johnson did not bring the demanded “Little Debbie
cakes” on one occasion. Mr. Jefferson directed claimant to get the bread
out of the freezer. As claimant was opening the freezer door Mr. Jefferson -
“who weighed something like 400 lbs “ - came behind Mr. Johnson and
grabbed him, lifted him in the air, and “started shaking [his] body up
and down like [he] was a rag doll,” saying “see motherf****r,
I’m tougher than you’all inmates, I’ll f**k one of you all
up!” Mr. Jefferson then dropped him down and claimant hit the ground.

At some point after the freezer incident, claimant sought medical assistance
[see Exhibits 1 and A] and utilized a back brace and a cane, as shown in
medical excuse forms dated in early July 2003. [Exhibit 2]. He did not, however,
tell anyone that he had been battered or extorted by Mr. Jefferson.

After the freezer incident, claimant said that Mr. Jefferson continued the
abuse. One “commissary day” Mr. Jefferson told claimant he wanted
things from the commissary. Claimant told Mr. Jefferson “I do not want to
get those items because of the sugar [since he suffered from Diabetes], and also
because I want to save money.” Nonetheless, when claimant went to the
commissary, he asked for Jefferson’s items. Arriving at the commissary
when it was closing, he was told he could not go in. Mr. Johnson told the
“commissary lady” - whose name he later learned was Tina Tamok -
that he needed the items “for Jeff.” Claimant testified that she
told an officer about this request, but he still was not allowed in to get the
items. The next day, when claimant did not have the items Jefferson had wanted,
Jefferson hit him again.

By way of explanation as to why he did not report these events, claimant said
that in prison, “you can’t just go to somebody because the employees
look out for each other.” He did “not know who to talk to.”
He thought he would approach Officer Kannon because Kannon would greet claimant
with a “good morning” and ask him how he was doing, and thus seemed
approachable. He spoke to Officer Kannon on August 3, 2003 [see Exhibits
1 and A], who then spoke to his own supervisor.

This was the first complaint Mr. Johnson ever made about the abuse by Mr.
Jefferson.

Within a short time after such report, the Inspector General’s Office
began its investigation. Mr. Johnson was interviewed by Mark Miller of the
Inspector General’s Office on August 28, 2003. [Exhibits 1 and A]. As Mr.
Johnson recalled it, he was told to go to the administration building “one
day”, and while there, he was “whisked down the hallway and into
some room” where he first met Mark Miller from the Inspector
General’s Office. Telling Mr. Miller he did not want to give him any
information, Mr. Miller kept asking why claimant was in the infirmary, why did
he have crutches and a cane, and ultimately claimant told him about the
beatings. Claimant said to Mr. Miller, “I can’t be protected in
here, because they all work together” but Mr. Miller said,
“don’t worry, I’m gonna take care of you.”

Claimant testified that investigators wanted to “catch” Mr.
Jefferson engaging in the extortionate behavior. At their instruction, he wrote
his initials on a box of Little Debbie cakes, and gave the box to the cook.
Unbeknownst to claimant, investigators were in the area when claimant went to
work. After he gave Mr. Jefferson the cakes, claimant was “taken away in
handcuffs”, and “kept in a cell” and then transferred to Mt.
McGregor. He could not see what was happening to Mr. Jefferson.

As soon as Johnson got to Mt. McGregor, the correction officers
“harassed” him about his involvement in the incident with Mr.
Jefferson. “It had followed” him, he avowed. One day he was beaten
up and dragged downstairs in the cellar of the administration building and
handcuffed. He said his “face was in a corner of a wall”, and
officers were “banging night sticks against the wall telling me they were
going to crack my skull open and to keep my mouth closed.” Fearful for
his life, claimant “asked the lieutenant to call Mark Miller.” Mark
Miller “came and got [him] that day.”

He said he was transferred to Hudson, and again experienced
“harassment” similar to that experienced at Mt. McGregor. As soon as
he got in the prison van for transfer, the “two officers did the same
thing”, he said, telling others at Hudson about claimant’s
involvement with Mr. Jefferson. He was told about protective custody, but
claimant felt “they would have really had me then. It would be just the
police [his term for correction officers] and there would be no witnesses
then.” He would not fill out the form for protective custody. He said he
was ultimately in “five different prisons over a couple of years”
for his safety. “Everywhere he went” he was “harassed by
staff.”

He “knew” he was “going to court” for the arbitration
hearing in December 2003 at Mid-Orange because the “threats
escalated.” When the hearing was over at Mid-Orange, he heard from the
“van officers” taking him back to Hudson that Mr. Jefferson was
terminated. When he “got back to the jail,” he was told to
“pack up” and told to “get the f*** out of my house” by
correction personnel at his housing unit. Arriving at a different housing unit
and unpacking, he would be greeted with the same or a similar exhortation. On
this one day, he estimated that he was told to “pack up and move at least
four or five times.” He was transferred from Hudson and served out his
time elsewhere, including Gowanda Correctional Facility and Mohawk Correctional
Facility.

The last ten (10) months of his incarceration at Mohawk before his release from
prison in 2006 were uneventful. He saw medical treatment providers periodically
for back pain and was prescribed pain medication. He said he sought and
received counseling. He said he has taken pain medication since the July 2003
freezer incident, and is currently prescribed 50 milligrams of Tramadol and 75
milligrams of Diclofenac. Surgery to both knees has been suggested, he said, and
he is “avoiding back surgery” by periodic injections. He claimed not
to have had physical issues until Mr. Jefferson’s assaultive conduct. Now
he “walks with a cane, uses a back brace and takes pain medication.”
He said he suffers from mental anguish to this day, and seeks damages in the
amount of “one million dollars.”

Both claimant and defendant submitted in evidence the Arbitrator’s
Opinion and Award resulting in the termination of Ronald Jefferson, setting
forth the Arbitrator’s summary of the evidence before him, and the reasons
for termination. [Exhibit 1 and A].[2] There is
no indication therein that prior to the events involving this claimant, that
DOCS had any notice that Mr. Jefferson was guilty of this type of misconduct.
[Ibid.]. Indeed, it is noted therein that “the first report of any
improper contact with Inmate Johnson was received on August 3, 2003.”
[Ibid.]. Inmate Bing never reported any “impropriety” either
although he, too, had been bullied by Jefferson. [Ibid.]. The arbitrator
does note testimony by a Philip Rancieri to the effect that he observed
Jefferson taking goods from inmates, and that he “counseled” him on
the instruction of a superior - and was immediately rebuffed by Jefferson.
[Ibid.]. There were no specifics given as to when this occurred, or what
“counseling” - a word with multiple meanings in a prison context -
meant.

On cross-examination, claimant confirmed again that he had been incarcerated
upon his conviction for the rape of a minor.

No other witnesses testified nor was any other evidence submitted on
claimant’s direct case.

Mark Miller, presently the Assistant Deputy Inspector General for the New York
State Office of the Inspector General [IG], testified. He indicated that he was
familiar with the case of Johnny Johnson and Ronald Jefferson, and identified
the Arbitrator’s Opinion and Award as containing a summary of his own
investigation and the resulting termination of Mr. Jefferson, as well as
summaries of the testimony given at the hearing by Mr. Miller, inmate Bing, and
Mr. Johnson. [Exhibit A]. At the time of the incident involving Mr. Johnson,
Mr. Miller said he was a senior investigator assigned to the Internal Affairs
Unit of the IG Office.

On August 13, 2003 he received the assignment concerning inmate Johnson’s
allegations that he was being assaulted by a civilian cook and was being
extorted for commissary goods. The complaint was first “articulated by
inmate Johnson to Officer Kannon on August third, who told his supervisor about
it in writing, who followed up the chain to the Superintendent” who
called the Inspector General’s Office.

Mr. Miller said that he first “did some cursory review on the computer
and saw that the inmate was incarcerated for the rape of a minor.” He said
“you typically do get a lot of complaints with these allegations of
harassment: it is a tough road for an inmate with a rape conviction in a
correctional facility.” Usually, however, it “involves other
inmates.”

Mr. Miller remembered the events of August 28, 2003 at Mid-Orange slightly
differently than Mr. Johnson, however, the salient points were the same. All of
the events occurred within a “two- to three-hour time period,”
namely: an interview with Johnson, interviews with the witnesses mentioned by
Johnson such as inmate Bing, and the commissary clerk, a “sting”
operation with a box of Little Debbie cakes, and claimant’s removal from
the facility. He recalled interviewing Mr. Johnson - as the complainant - first.
He recalled that Johnson described “two, or up to three, occasions where
the cook had punched him, and on one occasion threw him to the ground,”
and that Mr. Jefferson was extorting the inmate for Little Debbie cakes. Mr.
Miller said it was “tough to believe from a cook who has available to him
sheets of cake every single day as the head cook” that he would be
interested in such an item.

During the interview, claimant told Mr. Miller that he had to get back to work
because he had Little Debbie blueberry cake he had to deliver to the cook that
he had purchased or suffer the consequences. The “sting” arrangement
was made at that time, with Mr. Miller instructing claimant to place his
initials on the box he was supposed to deliver.

When Mr. Miller interviewed inmate Bing, Bing said he did see the cook
“manhandle” claimant, but Bing “did not say he picked . . .
[Johnson] up or threw him or punched him.” Bing reported that Jefferson
did bully inmates believed to have committed sex crimes for commissary goods,
specifically, “evaporated milk and cakes.”

In terms of corroborating other elements of Mr. Johnson’s complaint about
Jefferson, when Mr. Miller interviewed Tina, the commissary clerk, she
remembered one occasion when Johnson had submitted a sheet the day before, as
required to obtain commissary purchases, but then came down and indicated that
he forgot to include sticky buns for the head cook.

Miller said that in his review of the medical records, he saw Johnson came in
for an emergency sick call in June 2003. The notation by medical personnel was
that he said he had strained his back while working in the kitchen. Miller said
“the time frame was consistent and corroborative of . . .
[Johnson’s] story of having been thrown by Jefferson.”

As far as the mechanics of the “sting” arrangement with the Little
Debbie cakes, Miller said he waited until claimant had been at work for
approximately ten minutes, and would have handed over the cakes to Jefferson,
and then went with two officers to the kitchen area. The officers who
accompanied him had not been given any details. They had been told that Miller
needed to bring an inmate Johnson out, that Miller wanted him frisked, and then
brought to a holding area to be held there until he could be transported.
Miller had pre-arranged an administrative transfer before going down to the
kitchen, since “regardless of the result of the investigation it was clear
that there had been misconduct on the part of the cook in accepting gratuitous
gifts requiring administrative charges be brought against him.” The
“classification and movement” department would actually decide where
the transferred inmate would go, not Miller. Mr. Miller went down to the
kitchen area, Johnson was taken away, and the cakes were found in the
cook’s locked desk. At this point, Miller said, “we still did not
know if this was a set-up from the inmate saying ‘here cook, I brought you
some cakes today’ or what.” As a precautionary measure, however,
Miller had contacted the Bureau of Labor Relations, who placed Jefferson on
immediate administrative leave.

Other than Bing, no other inmates said they witnessed physical altercations;
one or two other inmates said they themselves had provided “evaporated
milk and things out of a pay back for the cook letting them stay later shifts,
things of that nature.” As they described their treatment to Miller,
“they were not being extorted.”

Miller testified that when they interrogated Ronald Jefferson, he
“totally lied about just short of his name. Everything we could verify he
just totally lied about.”

After the December 2003 arbitration hearing, the Arbitrator found that
Jefferson should be terminated. At that point, Mr. Jefferson was “on
administrative leave already”, and had thereafter been placed on
suspension at the conclusion of Miller’s investigation. Miller testified:
“Since August 28, 2003 Mr. Jefferson never set foot in another
facility.”

Although Mr. Miller testified that he did go to Mt. McGregor after claimant was
placed there to follow up with Johnson and review medical records, he claimed it
was routine, and not in an effort to “get him out,” as claimant had
testified. Miller did recall claimant complaining that he was not being
attended to in his medical care, but did not recall how he heard the complaint,
whether in person “or by letter or what.” From whatever source, Mr.
Miller remembered telephoning the superintendent to confirm that the inmate was
receiving “appropriate medical care” and learned that he was. He
also received a telephone call from the captain saying that inmate Johnson had
spoken to a lieutenant to say he was “being harassed by a Sergeant Porta,
but nothing physical.” Miller said:

“I don’t believe Mt. McGregor even has batons to be honest with
you . . . Also I am cautious about any manipulative behavior at this point
because we receive thousands of these [complaints] a day looking for transfers.
Being an inmate with rape, we get a lot of requests to be moved here or
there.”

Despite such reservations, however, Mr. Miller said he went to his own
supervisor in response to the report that he thought Johnson “may be
experiencing some verbal harassment, and recommended that he be transferred to
Hudson.” The captain at Hudson is a former Deputy Inspector General,
Miller explained. Miller insisted, however, that correction officers generally
do not know when an inmate is transferred

“administratively or normal course of business or otherwise. It is on a
hidden screen that they don’t have access to. The IG’s Office
notified the captain [at Mt. McGregor] - who was the only one who knew why. . .
[Johnson] was there - then we transferred him to Hudson. Obviously, with him
being transferred from Hudson and back, staff would know he was being
transferred for testimony for an arbitration, but we did not receive any
notification that he was being harassed or that any grievances were
filed.”

Mr. Miller’s last contact concerning Johnson - prior to being asked to
testify at this trial - had been when he signed off on a “routine”
order for Johnson’s transfer to Gowanda, which had a sex offenders’
program: a necessary part of Johnson’s rehabilitation in order to secure
parole. Because Johnson’s placement at Hudson had been pursuant to an IG
administrative transfer order, “movement and control” would
routinely inquire as to whether the IG Office had some reason that the subject
inmate could not be transferred.

Asked to describe Ronald Jefferson’s job responsibilities as civilian
head cook, Miller said Jefferson was responsible for food preparation.
“Inmates that worked underneath him were told the quantities to make, and
to use this scoop etc.” The correction officers, he said, are responsible
for “the care, custody and control of inmates.” Any problem
Jefferson may have had concerning inmate conduct, such as “refusal to
work, follow directions, slacking off, being disrespectful, whatever,” he
was required to report to correction officers.

DISCUSSION AND CONCLUSION

The primary theory of liability advanced by claimant on this claim is that the
State of New York should be held vicariously liable for Ronald Jefferson’s
tortious and indeed criminal conduct, including assault, battery and extortion,
based upon the doctrine of respondeatsuperior. He also asks that
liability be imposed upon the State of New York premised upon the negligent
supervision and/or retention of its employee, Ronald Jefferson. Additional
asserted bases for imposing liability are in allegations that claimant was
mistreated after his transfer from Mid-Orange in retaliation for his
participation in Jefferson’s termination, or that his claim can be viewed
as one for constitutional tort.

Upon review of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the Court finds that claimant has
established an adequate basis for the state's liability by a preponderance of
the credible evidence.

Under the doctrine of respondeat superior, an employer may be liable for
the tortious acts of its employee if the tortious acts occurred within the scope
of employment. Riviello v Waldron, 47 NY2d 297, 302 (1979). Although
intentional torts committed in furtherance of the employer’s business have
been found - albeit rarely - to have been committed in the scope of employment,
[see e.g.Jones v State of New York, 33 NY2d 275, 279
(1973);[3]Sims v Bergamo, 3 NY2d 531
(1957)[4]; Holmes v Gary Goldberg & Co.,
Inc., 40 AD3d 1033 (2d Dept 2007)[5]], the
criminal activities practiced by the cook are not the kind of intentional torts
that may render the State liable under the doctrine because they are clearly
perpetrated for the employee’s own purposes, are a departure from service
to the employer, and are not “. . . conduct [which] may have been
reasonably expected.” Riviello v Waldron, supra, at 304;
seeNaegele v Archdiocese of N.Y., 39 AD3d 270 (1st Dept 2007),
lv denied 9 NY3d 803 (2007);[6]Judith
M. v Sisters of Charity Hospital, 93 NY2d 932, 933
(1999)[7]; Doe v Rohan, 17 AD3d
509, 793 NYS2d 170 (2d Dept 2005).[8]Bowman
v State of New York, 10 AD3d 315 (1st Dept
2004).[9]

Mr. Jefferson’s duties as a civilian head cook were fairly circumscribed.
While there was a supervisory aspect to his interaction with the inmates with
kitchen work assignments, it was merely to require “x” amount of
potatoes be scrubbed or directing the implementation of a recipe. Any
insubordination was to be referred to correction officers. Clearly, the criminal
acts attested to here are not reasonably related to acts in furtherance of the
employer’s business. While a bouncer in a bar might foreseeably become
overzealous when pacifying a customer [seeSims v Bergamo,
supra], or an employee entrusted with sums of money might foreseeably
convert funds at her disposal to her own use [seeHolmes v Gary
Goldberg & Co., Inc., supra], the State may not be held
vicariously liable for the criminal acts of this bullying cook. The head cook
oversees the food preparation for the inmates. It is not reasonably foreseeable
that he would extort inmate cooks for pastries from the commissary, or beat them
up in furtherance of his employer’s business of feeding incarcerated
persons. While reprehensible, Mr. Jefferson’s actions were undertaken in
his own interests exclusively, and may not be imputed to his employer.

Causes of action for negligent supervision or negligent retention will not lie
under these facts. Negligent supervision requires a showing that the employer
knew or should have known - had the supervision been adequate - of the
employee’s propensity for the type of conduct which injured claimant.
Prentice v State of New York, UID # 2004-009-01, Claim No. 91731, Motion
Nos. M-65785, M-65786 (Midey, J., March 30,
2004)1[0]; Jablonski v State of New
York, UID # 2001-028-0010, Claim No. 96587 (Sise, J., April 10,
2001)1[1].

Under a negligent retention theory, a claimant would need to establish that the
employer knew or should have known of the employee’s propensity for the
sort of conduct which caused the injury. Detone v Bullit Courier Service,
Inc., 140 AD2d 278 (1st Dept 1988), lv denied 73 NY2d 702 (1988). In
a negligent retention cause of action, the negligence of the employer arises
from its “. . . having placed the employee in a position to cause
foreseeable harm, harm which would most probably have been spared the injured
party had the employer taken reasonable care in making decisions respecting the
. . . retention of his employees.” Detone v Bullit Courier Service,
Inc., supra, at 279.1[2]

Although claimant argued that there had been other, earlier, misconduct on the
part of Mr. Jefferson, there is no evidence that the defendant had prior notice
of such misconduct. The Arbitration decision specifically notes that Jefferson
had no prior disciplinary record. [See Exhibits 1 and A]. The statement
concerning prior “counseling” in the arbitration decision does not
place the said counseling in a context, including a time frame. As such, the
issue such counseling was to address cannot be translated into adequate notice
to the employer of the presence of a rogue employee. Indeed, it was Mr.
Johnson’s complaint which triggered an investigation resulting in Mr.
Jefferson’s termination. In the course of such investigation it was
revealed that Jefferson had bullied others, but there has been no showing that
the people in a position to take disciplinary action against Jefferson were
aware of such misconduct, or should have been aware of it, until Mr. Johnson
spoke up and then some others added their own information about
Jefferson’s conduct.

Additionally, while there was a correction officer assigned to the kitchen area
responsible for the care and custody and control and security of the kitchen
area and of the inmates, there was no evidence that the officer was ever advised
of the problem or even that he saw
anything.1[3] Claimant testified that the
activities took place in secret, or that some activity occurred only in the
presence of other inmates. There was no evidence or expert opinion offered that
the particular location of the officer was against penological standards for
supervision and staffing, for example. Cf. Sanchez v State of New
York, 99 NY2d 247 (2002); Smart v State of New York, UID #
2007-029-053, Claim No. 98024 (Mignano, J., December 21, 2007).

No cause of action for constitutional tort will lie given that claimant has
common-law remedies in timely commenced lawsuits for assault and battery. See
generally Brown v State of New York, 89 NY2d 172 (1996); Waxter v
State of New York, 6 Misc 3d 1035 (A) (Ct Cl 2005), affd 33 AD3d 1180
(3d Dept 2006).

Finally, with regard to the imposition of State liability premised on
claimant’s assertions that he was threatened and harassed at Mt. McGregor
and later at Hudson, there is some evidence to support a cause of action
premised upon the State’s vicarious liability for the assaultive acts of
its correctional officers who, unlike the cook, are responsible for the care,
custody, and control of inmates in their charge, and may render the State liable
for their tortious acts committed in the scope of such employment. SeeJones v State of New York, supra.

A cause of action for assault is established upon “. . . ‘proof of
physical conduct placing the [claimant] in imminent apprehension of harmful
contact’. . . (citations omitted).” See Fugazy v
Corbetta, 34 AD3d 728 (2d Dept 2006). To establish a cause of action for
battery, a claimant must prove that there was intentional, non-consensual and
offensive bodily contact.[Ibid.].

“ ‘[T]he primary mission of a correction officer [is] to be
responsible for the care custody and control of inmates . . . ” Matter
of Pierson v Kralik , 279 AD2d 630, 631 (2d Dept 2001). If claimant’s
description of the behavior of correction personnel at Mt. McGregor is credited,
such “conduct was fundamentally at variance with the conduct expected of a
peace officer.” [Ibid.].

Correction Law §137( 5) provides:

“No inmate in the care or custody of the department shall be subjected
to degrading treatment, and no officer or other employee of the department shall
inflict any blows whatever upon any inmate, unless in self defense, or to
suppress a revolt or insurrection. When any inmate, or group of inmates, shall
offer violence to any person, or do or attempt to do any injury to property, or
attempt to escape, or resist or disobey any lawful direction, the officers and
employees shall use all suitable means to defend themselves, to maintain order,
to enforce observation of discipline, to secure the persons of the offenders and
to prevent any such attempt or escape.”

This is the statutory authority for when force may be used for disciplinary
purposes, and requires its reasonable exercise. As set forth at 7 NYCRR §
251-1.2 (a), an officer must use “[t]he greatest caution and conservative
judgment . . . in determining . . . whether physical force is necessary; and . .
. the degree of such force that is necessary.” Once an officer determines
that physical force must be used, “. . . only such degree of force as is
reasonably required shall be used.” 7 NYCRR § 251-1.2(b).

While claimant did not formally file grievances - there was no evidence of any
contemporaneous complaints, such as grievances, or investigations of same
[seeWaxter v State of New York,
supra]1[4] - claimant’s testimony
that he was constantly subject to verbal abuse as his participation in the
investigation of Jefferson “followed” him from correctional facility
to correctional facility was highly credible.

More disturbing than the verbal harassment that one might expect in the unequal
and inherently dangerous setting of a prison, Johnson described one chilling
incident which occurred at Mt. McGregor which, if credible, shows that the
defendant’s employees most certainly engaged in physical conduct that
placed the claimant in imminent apprehension of harmful contact amounting to
civil assault, and likely committed battery as well in forcing claimant against
a wall. There was no indication that claimant posed a disciplinary threat, or
that force was used to subdue him or otherwise to justify its exercise. See
e.g. Passino v State of New York, 260 AD2d 915 (3d Dept 1999), lv
denied 93 NY2d 814 (1999).1[5]

The court finds it likely that the “secrecy” surrounding
claimant’s involvement in Jefferson’s termination was somewhat
overconfidently avowed by Mr. Miller. Indeed, from a reading of the arbitration
award decision [see Exhibits 1 and A] it appears Miller interviewed many
people1[6] who might not have exercised self
control over broadcasting claimant’s involvement in the investigation and
ultimate termination of Jefferson. Miller himself, while equivocally stating his
opinion that Mt. McGregor did not “have batons”, and his general
view that inmates are “manipulative,” by his own act of conferring
with his supervisor and arranging for claimant’s transfer to Hudson
credited at least a part of claimant’s complaints about Mt. McGregor, even
if his concerns were minimized to “verbal harassment” at trial. The
court finds Mr. Miller’s urging of a transfer more consistent with Mr.
Johnson having been subject to more than mere verbal harassment.

A large part of the resolution of this claim rests upon the relative
credibility of the witnesses. Resolving issues of credibility is the province of
this court as the trier of fact. LeGrand v State of New York, 195 AD2d
784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of
that role is observing the behavior and demeanor of witnesses as they testify,
and assessing the internal consistency of their accounts. “ ‘[T]he
fact-finder is not required to credit a particular fact testified to by one or
even six witnesses,’ but instead should assess the likelihood of a fact
being true ‘by the totality of circumstances surrounding the occurrence
as well as by the ordinary laws that govern human conduct’ (People v
Collier, 85 Misc 2d 529, 553 [NY Sup 1975]).” Medina v State of New
York, UID # 2007-028-010, Claim No. 106664 (Sise, J., March 2, 2007).

In this case, the sole witness with direct knowledge concerning the incidents
at Mt. McGregor was Mr. Johnson. Certainly the court is not obligated to accept
in its entirety the testimonial evidence offered by one witness alone.
See 1A NY PJI3d 1:41, at 55-56 (2006). This is because a court is always
required to assess the credibility and consistency of any witness offered, and
has done so in this case.

The testimony of the claimant, who impressed the court as an intelligent and
resourceful individual, was credible and consistent. His distress and
perception that he was powerless in the face of the cook’s bullying, and
thereafter powerless to pursue redress for the treatment he received once the
investigation was undertaken and he was moved from facility to facility, was
very real. Any tendency to exaggerate does no more than create some minor
inconsistencies in his testimony concerning the initial report concerning
Jefferson’s behavior, and the initial interactions with Mr. Miller and the
sting operation.

In finding the claimant credible, the court is not unmindful of the general
view - as expressed by Mr. Miller in his trial testimony - that there is a
tendency to overdramatize or manipulate events to make the actor more
sympathetic as the tale is told. This claimant is clearly not a helpless
individual in a setting other than a prison under the circumstances he described
- indeed, there were times during his testimony when it could be seen that he
was capable of great forcefulness.

When cross-examined claimant readily confirmed that he was convicted of a
heinous crime. Claimant’s testimony on direct examination about the
assaultive conduct of correction personnel charged with his care, custody and
control after he contributed to the termination of a state employee was
uncontested. No correction officers with direct knowledge of his treatment at
Mt. McGregor were called to testify and perhaps rebut, if they could, the
claimant’s testimony. Bradshaw v State of New York, 24 AD2d 930
(3d Dept 1965); 1[7] 1A NY PJI 3d 1:75, at
108-124 (2006).

Based on the foregoing, as the trier of fact and law, charged with assessing
the credibility of witnesses and evaluating the evidence, the court finds that
the claimant has established that the State of New York should be held
vicariously liable for the assaultive conduct of its agents at Mt McGregor by a
preponderance of the credible evidence.

DAMAGES

Damages for assault and/or battery, if proven, may include compensation for
the injury, pain and suffering and any special damages incurred. DeLaCruz v
City of New York, 163 AD2d 163 (1st Dept 1990). Punitive damages are not
recoverable against the state or its political subdivisions. Sharapata v
Town of Islip, 56 NY2d 332, 339 (1982). Nor can a claimant recover for
emotional distress against the State of New York. Finally, claimant must connect
the assault and/or battery to any continuing injury with expert testimony,
particularly when a pre-existing injury is part of the factual scenario.
SeePanzarino v Carella, 247 AD2d 521, 523 (2d Dept 1998);
Ortiz v Mendolia, 116 AD2d 707(2d Dept 1986). “Claimant may recover
only for such increased pain and suffering caused by defendant’s acts . .
. (citations omitted).” Mihileas v State of New York, 266
AD2d 866 (4th Dept 1999).

Claimant did not establish the extent or permanency of injuries proximately
caused by the assault and battery committed by the State’s agents at Mt.
McGregor. Only claimant’s testimony concerning his continued distress and
anxiety was offered, with no substantiation by medical or psychiatric records or
expert testimony.

Accordingly, the court finds that claimant is entitled to compensation in the
amount of $5,000.00 for the conduct of the state’s agents in placing him
in imminent fear of harm, and intentionally touching him offensively. To the
extent claimant has paid a filing fee, it may be recovered pursuant to Court of
Claims Act §11-a(2).

Let judgment be entered accordingly.

November 25, 2008White
Plains, New York

HON. THOMAS SCUCCIMARRAJudge of the Court of
Claims

[1]. All quotations are to trial notes or audio
recordings unless otherwise indicated.

[2]. The parties indicated that both copies were
missing page 16 of the determination, containing a portion of the
arbitrator’s summary of Ronald Jefferson’s testimony.

[3]. The State may be liable for the use of
excessive force by its correction officer employees upon inmates in the custody
of the New York State Department of Correctional Services under the doctrine of
respondeat superior.

[4]. Bartender’s assault on
plaintiff/customer found to have been in furtherance of his employer’s
interest rendering employer vicariously liable. Court of Appeals reinstated
jury verdict for plaintiff, finding it could not be said that there was no
evidence supporting vicarious liability as a matter of law, when viewing the
evidence in the light most favorable to the plaintiff. “The perpetration
of the assault for either of these purposes - protecting his employer’s
property from further damage and the maintenance of peace and order therein -
would have been pursuant to unexpressed rules and in the performance of duties
enjoined upon him by his employment and in the furtherance of his
employer’s interests.” Sims v Bergamo, supra at 535.

[5]. In the context of a motion to dismiss for
failure to state a cause of action, customers stated a cause of action against
brokerage house, where financial advisor employed by the firm - their own sister
- converted monies in their brokerage account to her own use. The court said it
was “ ‘foreseeable that an agent entrusted with significant sums of
money might convert such funds to his [or her] own use’. . . (citations
omitted).” Holmes v Gary Goldberg & Co., 40 AD3d 1033, 1035
(2d Dept 2007).

[6]. Motion to dismiss lawsuit by estate against
archdiocese should have been granted. Parish pastor’s alleged exercise of
undue influence over deceased parishioner to obtain almost half million dollars
for his own benefit could not be basis for archdiocese being held vicariously
liable. “[T]he Monsignor’s alleged tortious conduct, which may be
characterized as exercising undue influence, overreaching, fraud or even theft,
was not in furtherance of archdiocesan business and was a clear departure from
the scope of his employment, having been committed for wholly personal
motives.”

Naegele v Archdiocese of New York, supra, 270-271.

[7]. Hospital not vicariously liable for sexual
abuse of patient by orderly; summary judgment dismissing this cause of action
proper.

[8]. Since the bus driver’s acts in
sexually abusing and molesting a student passenger were clearly not in
furtherance of his employer’s business, and thus not committed within the
scope of his employment, the bus company and the school district could not be
held vicariously liable under the doctrine of respondeat superior. 793
NYS2d 170, 173

[9]. State not liable for court officer’s
rape of private security guard, and also not liable if the acts were consensual,
since employee clearly not acting within scope of employment but rather for his
own purposes. Summary judgment dismissing should have been granted; also
dismissed with respect of apparent authority.

1[2].Thus, in Detone v Bullit Courier
Service, Inc., supra, at 279, the Court reiterated the rule that an
employer may be liable in damages for its employee’s tort “. . .
against a third party when the employer has either hired or retained the
employee with knowledge of the employee’s propensity for the sort of
behavior which caused the injured party’s harm . . . (citations
omitted).” [Id.].

1[3]. At the arbitration hearing claimant had
apparently testified that correction officer La Vail was working in the kitchen
approximately five feet away on a day that claimant was allegedly “pushed
against a table and pinned” by Jefferson, but could not hear what was
going on above the noise. [Exhibits 1 and A]. The claimant did not testify
about this occurrence at trial.

1[4]. In the context of a summary judgment
motion - not a plenary trial such as this one - the Court wrote: “With
respect to the cause of action asserted in paragraphs 30 and 31 of the claim,
quoted above, of harassment, abuse, and excessive wrongful confinement after the
incident involving Correction Officer Roberts, defendant's submission of the
investigation reports and other material (Friedman affirmation, Exhibit C)
establishes that there are material issues of fact that must be determined at
trial.”

1[5]. “. . . [C]laimant had been lawfully
arrested for driving while intoxicated, was agitated and exhibited belligerent
behavior and refused repeated requests to remove his hands from his pocket to be
handcuffed . [The trooper] followed State Police policy governing the use of
force by complying with levels one through three of the guidelines before
employing the use of pepper spray. Given these facts, we agree with the Court of
Claims' conclusion that [the trooper’s] use of the spray was objectively
reasonable under the circumstances to effect control over claimant and did not
constitute excessive force . . . (citations omitted).”

1[6]. At a minimum, as set forth in the
decision, Officer Kannon, Tina Tamok, Inmate Bing, Philip Nicholas Rancieri,
Food Service Administrator I, Inmate Coscia, Inmate Beauchamps, Inmate Reedy,
Inmate Haynes, Sergeant Brightbill; Lieutenant Harter, Sergeant Wood, Captain
Griffin, William Cronic, Garage Supervisor and Local Union President, had
involvement in the investigation of Jefferson. The decision reports that Mr.
Miller interviewed and took statements from ten of the twenty inmates who worked
in the kitchen. The decision reports Cronic’s - the union president -
testimony that he spoke to thirty-five staff in kitchen.

1[7]. “[Claimant’s] testimony
established a prima facie case that the State’s negligence contributed to
or caused the accident, and we find no basis here on which the court below could
disregard such testimony even though . . . [claimant] was an interested witness
. . . (citations omitted). In addition, the State’s failure to call
the attendants allegedly involved supports an inference that their testimony
would not have been favorable to the State . . . (citation omitted).
Accordingly, based on the entire record we find that negligence attributable to
the State was the cause of the accident . . . ” Bradshaw v State of New
York, supra, at 930-931.